Re-sentencing under the statute is not a plenary re-sentencing is not a plenary review of all intervening changes in the law, but an imposition of a sentence incorporating the specific changes mandated by the statute. The judge is then free to weigh the intervening changes in the law in the subsequent discretionary resentencing. Affording plenary sentencing would unfairly reward those who had been convicted of the predicate offense.
Tenfold, almost equally divided circuit split flagged.
DISSENT:
No need to bifurcate the process; once the court determines the eligibility for resentencing according to the law at the time of the original sentencing, before making the gating decision, the court is then free to consider subsequent legal and factual developments before deciding on whether to grant the motion to revisit the sentence.